Name:
Date:
Course/Project:
Description of Copyrighted Material (Title' Author' Date of Copyright):
Amount of proposed use (e,g, number of pages, chapters, lines or duration) vs. whole work:
FAIR USE ANALYSIS TOOL
What is fair use? While copyright law restricts the use of copyrighted materials without the
copyright holder's permission, the doctrine of fair use is available under certain circumstances as a
defense to using copyrighted works without permission. As a threshold issue, section 107 of the
Copyright Act provides that a fair use anal)¿sis may be applied where copyrighted works are used
"for purposes such as criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research." The copyright law then lists the following four factors
that must be considered in determining whether a particular use falls under the "fair use" defense:
(1) the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as
a whole; and
(a) the effect of the use upon the potential market for, or value of, the copyrighted work.
Because the four factors as codifîed into law are broad, the most useful guidance on these factors
is gleaned from court decisions ruling on whether challenged uses of copyrighted v/orks are
protected under the fair use defense. *From time to time, the Office of the General Counsel wíll
post on its website examples of the types of use that generally fall under fair use.
Your responsibitity: The applicability of the fair use factors depends on the particular facts of
your proposed use. Because you are most familiar with your proposed use, you are in the best
position to determine whether your proposed use of copyrighted material is likely to be permitted
under the fair use defense. This tool has been developed to assist you in applying the four factors
to your proposed use so that you can appropriately assess whether your proposed use ofa
copyrighted work can be covered by fair use.
To comply with University policy, you are required to complete and retain a copy of this form in
connection with each "fair use" determination of a copyrighted work to document that your
decision-making process for using the proposed work comports with the law. Please use the
"Notes" section to add more contextual information regarding your assessment of the factors in
connection with your intended use.
1.
Purpose and Character of Your Use
Rule: While the copyright law distinguishes between commercial and nonprof,rt educational
pulposes, this distinction is not dispositive of fair use. In enacting the law, Congress specifically
Office of the General Counsel: Updated November 2008
rejected an exemption that would protect all use for educational purposes. More significant to
you, urr.rrment is whether your intended use of a copyrighted work merely duplicates the work or
whether it will alter or transform the original work in such away as to create something new.
'Where
the intended use is educational and ffansformative, your use is more likely to fall under fair
use. Even if your use is arguably commercial, your use may still qualiff as fair use if it is highly
transformative. Where your use merely duplicates an original work, it is quite likely that your use
will not fall under fair use, even if your use is for nonprofit educational purposes.
Applicatíon:
Is the purpose of your intended use different than that of the original work?
Does your proposed use transform the original work by adding something new, presenting it in a
different medium and context, or altering the original work by creating new expression, insights or
meaning?
Your øssessment:
Describe details regarding purpose and character of the proposed use:
2. Nature of the CoPYrighted Work
Rule: This factor is straightforward, but as with the other factors, not dispositive. Courts have
considered use of works that are factual or published as weighing in favor of fair use, and use of
works that
are creative or unpublished as
weighing against fair use.
Applícatíon:
Is the work that you wish to use a factual work or are you seeking to use a highly creative work,
such as a poem, play, photograph or novel?
Is the work that you seek to use aheady published?
Your assessment:
Describe details regarding "nature" of the proposed use:
Office of the General Counsel: Updated November 2008
3.
Amount and Substantiality of the Portion to be Used
Rule: There is no bright line rule here and your analysis of this factor will
be particular to the
likely
the
use will be considered
more
the
portion
work
used,
of a
facts. In general, the smaller the
fair. However, if you use a portion considered to be the "heart of the work," even if that portion
constitutes avery small percentage of the entire work, your use will less likely qualiff as a fair
use. Moreover, the extent of permissible use may vary depending on the purpose and character of
the use (See Factor I above). Thus, even if your use is arguably substantial, provided your use is
the amount required to accomplish your specifîc purpose andlor is highly transformative, your use
may be fair. For example, at least one court has determined that the use of a copyrighted
photograph in its entirety was fair use, where the use was transformative and the photograph was
reproduced only as a thumbnail with less clarity than the original image'
Application:
Is only a short clip or excerpt to be used?
Is the portion to be used the "heart of the work"?
Is the amount to be used only that of which is required to accomplish your purpose?
Your øssessment:
Describe details regarding amount and substantiality of the portion to be used:
4.
Effect on the Market for the Original Work
Rule: This factor is typically given great weight by courts, and, as apractical matter, is the factor
most likely to trigger a challenge to use claimed to be fair. Consider whether your use deprives
the copyright owner of income or whether it undermines a potential market for the copyrighted
work. Some courts have found that restricting access to the reproduced content to prevent copying
by others diminishes the potential negative effect on the market for the original work. Another
court has found that where the use stimulates the market for the original work, such use will
actually have a positive impact on the market. Note that your consideration of this factor may turn
o1pt.uionsly cónsidered factors, such as the amount and substantiality of the portion used. For
Office of the General Counsel: Updated November 2008
example, the more of the material you intend to use, the greater the negative impact on the market
for the work and the less likely your intended use will be considered fair. If you intend to use the
material on an ongoing basis, such repeated use may not be a defensible fair use, but this will
depend on individual circumstances.
Your øssessment:
Is the material (e.g. a digital image, an excerpt from a book) already available for a price? Is the
price a fair market price? Is the contemplated use one which permission from the copyright holder
is generally required?
Is a licensing or other payment mechanism in place for the contemplated use? Ifnot, based on
current indicators, how likely will such a mechanism be put in place?
Describe details regarding effect of the contemplated use on the market or any potential market:
Final Determination: Your f,rnal determination requires a subjective balancing of each of
the four factors. You may find that some factors are more significant than others under the
particular circumstances or that certain factors impact others. If you determine that the fair use
defense applies to your intended use, briefly explain how you have arrived at this conclusion in the
box below. Please note that the University appreciates that fair use assessment is not an exact
science and requires only that you make a good faith determination.
Describe details regarding your final determination:
If you determine that your intended use does not constitute fair use, then permission of the
copyright holder is required to use the work. Keep in mind, however, that you do have
altematives. You might reevaluate your proposed use and/or consider using a smaller portion of
the material,paraphrasing the material, or limiting access to the material to adjust the fair use
analysis outcome. If your use requires displaying performances of copyrighted works online for
distance learning pu{poses, your contemplated use may be permissible under the TEACH Act,
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which provides copyright exemptions independent of fair use. Please consult the University's
Guidelines for the TEACH Act for guidance on invoking the TEACH Act.
Office of the General Counsel: Updated November 2008